200 KAR 1:020.
Access to public records.
RELATES TO: KRS
Chapter 61
STATUTORY
AUTHORITY: KRS 61.876(3)
NECESSITY,
FUNCTION, AND CONFORMITY: The Finance and Administration Cabinet is authorized
by KRS 61.876(3) to promulgate uniform rules governing public access to public
records maintained by administrative agencies of the state government. This
administrative regulation establishes the general rules to be followed by all
state administrative agencies in affording public access to their records and
by persons applying to inspect such records. This amendment adds the word
diskettes to the definition of "public record" in accordance with
Chapter 150, Section 2, 1986 Acts of the General Assembly, as requested by the
Interim State Government Committee.
Section 1.
General. Consistent with the provisions of KRS 61.870 to 61.884, the public
records of all administrative agencies of the Kentucky State Government, except
as provided in Section 4 of this administrative regulation, shall be open for
inspection by any person in accordance with the procedures established by this
administrative regulation.
Section 2.
Definitions. The following terms shall have the meaning assigned herein:
(1) "State
administrative agency" means every program cabinet, department and
administrative body of the Kentucky State Government as defined by KRS 12.010,
headed by, or whose membership is composed of, persons appointed by the
Governor, and their component organizational subdivisions.
(2) "Public
record" means all books, papers, maps, photographs, cards, tapes, discs,
diskettes, records or other documentary materials prepared, owned, used, in the
possession of or retained by a state administrative agency, but does not
include any records owned by a private person or corporation in the possession
of a state administrative agency or an officer or employee thereof, and not
related to any function, activity, program or operation funded by the state.
(3)
"Official custodian" means the chief administrative officer of a
state administrative agency who by virtue of his position, is responsible for
the maintenance, care and keeping of all the public records of his agency, or
if so designated in writing by the chief administrative officer of a state
administrative agency, the head of each office, bureau, division or other
organizational subdivision within a state administrative agency, who is
responsible for the maintenance, care and keeping of all the public records of
his organizational unit.
(4)
"Custodian" means any officer or employee of a state administrative
agency having public records in his personal custody and control.
Section 3. (1)
Any person may, on written application to the official custodian describing the
records, inspect and make abstracts and memoranda of the contents of any of the
public records, except those listed in Section 4 of this administrative
regulation, of all state administrative agencies. Copies of any written
material shall be furnished, on request, to any person requesting them, on
payment of fee of ten (10) cents a page for each record copies; copies of
photographs, maps and other nonwritten material, and records stored in computer
files or libraries, shall be furnished to any person requesting them on payment
of a fee equal to the actual cost to the agency of producing the copies.
Persons requesting copies of records shall be advised of the total actual cost
of copies of written material, and the actual, if known, or approximate cost or
producing copies of nonwritten material or of records stored in computer files
or libraries before the copies are prepared. The fee shall be collected before
the copies are handed or sent to the person requesting them. The fees
established herein shall not be collected, for copies of records requested in
the course of their employment by employees of state administrative agencies,
and shall be inapplicable in cases of documents printed for sale for which a
fee is fixed by or pursuant to law or which are customarily distributed without
charge.
(2) The
inspection of public records of state administrative agencies shall in all
cases be made in the presence of an employee of the agency, on premises
occupied by the agency having custody of the records, during the usual office
hours of the particular office or other organizational unit having physical
possession of the records. The official custodian of the records of each state
administrative agency, and of each administrative subdivision of the agency,
shall be responsible for the assignment of agency employees, as a duty in addition
to their usual duties, to assist persons applying to inspect the public records
of the agency and to insure protection of the records against damage and
disorganization.
Section 4. The
public records enumerated in subsections (1) through (10) of this section
shall, except as provided herein, be subject to inspection only upon an Order
of the Court of this Commonwealth or of the United States. The exemptions under
this section notwithstanding, nothing herein shall prohibit or limit the
exchange of public records or the sharing of information between state
administrative agencies and other public agencies when the exchange of such
records or sharing of such information will serve legitimate governmental needs
or is necessary in the performance of legitimate governmental functions, nor
shall the enumeration of any material herein prohibit disclosure of statistical
information not readily identifiable of any person. If any public record
contains material subject to public inspection only by court order, and other
material not so excluded from public inspection, the custodian of the record
shall, on application by any person for inspection of such record, segregate or
remove the excluded material from the record and the nonexcluded material shall
then be available for inspection in accordance with the application for
inspection. The official custodian of the records of each state administrative
agency shall generally exclude from public inspection, except by an order of
court as provided in this section.
(1) Public
records containing information of a personal nature where public disclosure
would constitute a clearly unwarranted invasion of personal privacy.
(2) Records
confidentially disclosed to an agency and compiled and maintained for:
scientific research; in conjunction with an application for a loan; the
administrative regulation of commercial enterprise, including mineral
exploration records; unpatented, secret, commercially valuable plans,
appliances, formulas, or processes, which are used for making, preparing,
compounding, treating, or processing of articles or materials which are trade
commodities obtained from a person and which are generally recognized as
confidential; or for the grant or review of a license to do business which if
openly disclosed, would permit an unfair advantage to competitors of the
subject enterprise, unless the disclosure or publication of such records is
directed by law.
(3) Public
records pertaining to the prospective location of a business or industry where
no previous public disclosure has been made of the business' or industry's
interest in locating in, relocated within, or expanding within the
Commonwealth. (Provided, however, that this exemption shall not include
applications filed with state administrative agencies for permits or licenses
necessary to do business or to expand business operations within the state,
except as provided in subsection (2) of this section).
(4) The contents
of real estate appraisals, engineering or feasibility estimates and evaluations
made by or for an agency relative to the acquisition of real property, until
such time as all of the property has been acquired.
(5) Test
questions, scoring keys and other examination data used to administer a
licensing examination, or an examination for employment before the examination
is given or if it is to be given again.
(6) Centralized
criminal history records maintained by the Kentucky Justice Cabinet and
intelligence and investigative reports maintained by state criminal justice
agencies except as provided in KRS 17.150, and records of law enforcement or
administrative agencies compiled in the process of detecting and investigating
statutory or regulatory violations if the disclosure of the information
contained in such records would harm the agency by revealing the identity of
informants not otherwise known or by the premature release of information to be
used in a prospective prosecution or suit or an administrative adjudication.
Except as provided by KRS 17.150, public records exempted under this subsection
shall be open for inspection after adjudicative action is completed or a
decision has been made to take no action.
(7) The official
custodian shall have the burden of justifying with specificity a refusal of a
demand for inspection of any public records covered by the exemptions provided
in this subsection except centralized criminal history records maintained by
the Kentucky Justice Cabinet. Preliminary drafts, notes, correspondence between
state administrative agencies and private individuals, other than correspondence
intended to give notice of final action by an agency.
(8) Preliminary
recommendations and memoranda in which opinions are expressed or policies
formulated or recommended.
(9) All public
records or information, the disclosure of which is prohibited by federal law or
regulation.
(10) Public
records or information, the disclosure of which is prohibited or restricted or
otherwise made confidential by the statutes of this Commonwealth.
Section 5.
Application for Inspection of Public Records. (1) Persons requesting to inspect
public records of state administrative agencies shall file a written
application describing the records requested to be inspected, on a form
prescribed by the Finance and Administration Cabinet, with the official custodian
of the records of the office of the agency having physical custody of the
records. Agency employees shall assist, on request of the applicant, in
completing the form; the applicant shall sign the application form. The
application form shall include a receipt to be completed and signed by the
custodian of the records for payment received for copies of records requested
by applicants and one (1) copy of the receipt shall be furnished to the
applicant.
(2) Application
forms for the inspection of public records of state administrative agencies
will be stocked by and available from the Central Stores of the Finance and
Administration Cabinet. Each state administrative agency shall be responsible
for obtaining from Central Stores an adequate supply of the application forms
for use by each of its administrative subdivisions so that at all times there
will be sufficient number of forms on hand to comply with requests for
inspection of the agency's records.
Section 6.
Agency Responsibility. (1) Each state administrative agency shall display a
copy of this administrative regulation in a prominent location in each of its
offices to which the general public has access. Copies of this administrative
regulation, suitable for posting, shall be printed and each agency shall be
responsible for obtaining the number of copies of the printed administrative
regulation required to comply with this section from the Central Stores of the
Finance and Administration Cabinet.
(2) The printed
copies of this administrative regulation shall bear the following caption which
shall be appropriately completed by each agency and its subdivisions:
NOTICE
ADMINISTRATIVE
REGULATIONS GOVERNING
INSPECTION
OF THE PUBLIC RECORDS OF THE
___________________________________________________
(Name
of State Administrative Agency)
___________________________________________________
(Office,
Bureau, Division, etc.)
Pursuant to KRS 61.870
to 61.884, the public is notified that, as provided herein, the public records
of the above named Agency of the Commonwealth of Kentucky are open for
inspection by any person on written application to __________ (name), _________
(title), official custodian of the public records of the _____________ (state
administrative agency) whose address is ___________ or to __________ (name),
__________ (title), official custodian of the public records of the
____________, (office, bureau, division, etc.) whose address is ______________,
from ____ a.m. to ____ p.m., Monday through Friday, each week, except holidays.
Application forms for the inspection of the public records of this agency will
be furnished on request to any person by an employee in this office. Assistance
in completing the application form will be provided by an employee on request.
Applicants for
the inspection of public records shall be advised of the availability of the
records requested for inspection, and shall be notified in writing not later
than three (3) working days after receipt of an application for inspection of
any reason the records requested are not available for public inspection.
Copies of
written material in the public records of this agency shall be furnished to any
person requesting them on payment of a fee of ten (10) cents a page; copies of
nonwritten records (photographs, maps, material stored in computer files or
libraries, etc.) shall be furnished on request, on payment of a charge equal to
the actual cost of producing copies of such records by the most economic
process not likely to damage or alter the record.
This the ______ day of
______________, 19___.
___________________________________________________
(Agency
Head or Designated Representative)
(3) The official
custodian of records requested for public inspection shall promptly determine
the availability of such records for inspection; if it is determined that the
records are not available for inspection, the applicant, if present, will be
orally advised, subject to written confirmation, or notified in writing, not
later than three (3) working days after the date of receipt of the written
application for inspection of the records of the reason or reasons why the
records are not available for inspection. If the record sought is in active
use, in storage or not otherwise available, the applicant will be advised of
the reason for the delay in providing access to the record and of the earliest
practicable date, time and place that the record will be available for
inspection. If an application for inspection of a record is denied because it
is of a kind, or contains material enumerated in Section 4 of this
administrative regulation, the official custodian shall advise the applicant in
writing of the reason for denial, in whole or in part, and shall include a
statement of the specific exception contained in Section 4 of this administrative
regulation, and in KRS 61.878, authorizing denial of the application and an
explanation of how the exception applies to the record withheld. A copy, signed
by the official custodian of the records, of the writing denying any
application for the inspection of the public records of any state
administrative agency, shall be sent to the Attorney General. If any person who
has been denied the right to inspect any public records of a state
administrative agency requests the Attorney General to review the denial of his
application, the agency shall furnish such additional documentation concerning
the circumstances of the denial of inspection of the records and a copy of the
records, as the Attorney General may request. If any person denied the right to
inspect the records of a state administrative agency elects to file suit
against an agency to compel inspection of the records denied, the agency shall
immediately advise the Attorney General of the action and forward to the
Attorney General on the day served, a copy of the Summons in the action. (3
Ky.R. 175; eff. 9-1-76; Am. 16 Ky.R. 373; eff. 10-11-89.)
